US judge orders five Guantánamo detainees freed for lack of evidence

In a decision which deals a sharp blow to the White House, a federal judge ordered the release of five men who have been held for more than eight years as enemy combatants in Guantánamo Bay, Cuba.

The New York Times reports that in rendering his decision, Judge Richard Leon said Thursday the government's evidence, which he called "a classified document from an unnamed source," was insufficient to show the five detainees' link to Al Qaeda.

"To rest on so thin a reed would be inconsistent with this court's obligation," Judge Leon said. He urged the government not to appeal and said the men should be released "forthwith."

The habeas corpus case was an important test of the administration's detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with hardened fighters and terrorist commanders.

The judge also ruled that a sixth Algerian man was being lawfully detained because he was a facilitator for Al Qaeda, arranging travel for others to fight the United States, and planned to become a fighter himself.

The detainees are part of a group of six Algerians who were seized in Bosnia in 2001 and charged with attempting to blow up the US embassy there. The government later dropped that charge, and instead accused them of plans to go to Afghanistan to fight US forces there. Judge Leon ruled that the government had shown sufficient evidence to continue holding one of the six, Belkacem Bensayah.

"We absolutely expected this day to come," Stephen Oleskey, the lead [counsel] for the petitioners, told reporters outside the courthouse after the hearing. "It should not have taken this long."

Justice Department spokesman Peter Carr said in a statement the department was pleased that Bensayah can continue to be held and that it is reviewing the decision regarding the other five men.

"Today's decision is perhaps an understandable consequence of the fact that neither the Supreme Court nor Congress has provided rules" on how the cases should proceed, Carr said. He said Congress should enact rules so the cases can be handled "in a way that is fair to the detainee but that allows the government to present its case without imperiling national security."

The order to free the five detainees was made possible by a US Supreme Court ruling in June that detainees have the right to challenge open-ended detentions in court, The Christian Science Monitor reported. The 5 to 4 decision struck down as unconstitutional a portion of the 2006 Military Commissions Act that barred federal judges from hearing the appeals of detainees like those held in Guantánamo. The Bush administration had argued that as "enemy combatants," detainees had no right to challenge their detentions in US court.

All told, more than 200 detainees are challenging their confinements before judges in U.S. District Court in Washington.

Legal scholars and lawyers representing detainees said the ruling is the latest setback for the Bush administration's legal battle over the rights of the detainees. Leon, an appointee of President Bush, had been viewed by many as sympathetic to government arguments. He ruled in 2005 that the detainees did not have grounds to contest their detentions in his court. That was the decision the Supreme Court reversed in June.

"For a judge like Leon to order their release from detention is significant because the government has long maintained the evidence it had was more than sufficient to justify the detentions," said Scott L. Silliman, a national security law professor at Duke University. "This is a clear warning shot to the government. . . . These are probably not the last detainees to be ordered released."

SCOTUSblog, a legal news and commentary blog, notes that Leon expressed disagreement with the Supreme Court's ruling while announcing his decision, and warned that the ruling should not open the door to broader release of detainees.

The judge appeared to be mildly critical of the Supreme Court's ruling on detainees' habeas rights, saying that "the practical effect of imposing the habeas process on the world of intelligence-gathering" is "to create a virtually limitless complex of novel and difficult questions; as a result, the precedential value [of his decision] should be and is limited to these cases."...

Near the close of the oral announcement of his decision, the judge cautioned observers not to read any wider effect into his ruling. "Few if any of the others will be factually like" the Bosnians' case, he said, adding: "Nobody should be lulled into a false sense that all of the government's cases will look like this one."

The judge also added that "there comes a time when the desire to resolve novel legal questions...pales in comparison to effecting a just result based on the state of the record."

But commentators note that Leon's decision is significant, especially considering his background. Glenn Greenwald of Salon.com writes that Leon, a Bush appointee, is "known for ruling in favor of the Government and for expansive executive power."

He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments. That Judge Leon – of all judges – ruled that there was no credible evidence to suggest that these detainees are "enemy combatants" is as compelling a sign as one can imagine that there is no such evidence.